SENATE BILL NO. 40
AS AMENDED BY SENATE AMENDMENT NO. 5 AND HOUSE AMENDMENT NO. 1
AN ACT TO AMEND TITLE 13, CHAPTER 11 OF THE DELAWARE CODE RELATING TO THE TERMINATION OF PARENTAL RIGHTS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Title 13, Chapter 11 of the Delaware Code by striking
said Chapter in its entirety and substituting in lieu thereof a new Chapter 11 to read as follows:
'Abandoned' shall be interpreted as referring to any child who,
for a period of six months, or to any infant who, for a period of ninety days, has not received any regular and reasonable financial help from his parent or parents or any person having parental rights or responsibility and on whose behalf no substantial contacts have been initiated by his parent or parents or any person having parental rights or responsibility during that period.
'Authorized agency' means any agency duly approved, certified,
recognized or licensed by the proper authority of any other state in which that agency is located to place children for adoption.
'Child' means any male or female who has not attained his or her eighteenth (18) birthday.
'Court' shall mean the Family Court of the State of Delaware.
'Department' means the Department of Services for Children, Youth, and Their Families of this state.
'Father' means the biological or adoptive male parent of the child.
'Infant' means any child who is less than six (6) months of age.
'Licensed agency' means any agency granted a license by the
Department to place children for adoption.
'Mentally incompetent' shall be interpreted as referring to a
parent who is unable to discharge parental responsibilities by reason of mental illness, psychopathology, mental retardation or mental deficiency.
'Parental' responsibilities' means the care, support and control
of the child in a manner that provides for the child's necessary physical needs, including adequate food, clothing and shelter, and that also provides for the mental and emotional health and development of such child.
'Presumed father' means any man who is assumed to be the father of a child in accordance with Chapter 8 of this title.
§1102. Jurisdiction and Venue
The Family Court shall have 3urisdiction of proceedings under this chapter to terminate parental rights.
A petition for termination of parental rights may be filed in the Family Court of any of the following counties:
The county in which at least one parent resides;
The county in which the organization having legal or physical care, custody, or control of the child is located;
The county In which the child is located.
(c) Whenever the Family Court shall assume jurisdiction for the
purposes of this chapter, it shall be deemed to have retained jurisdiction for the purpose of proceeding under Chapter 9 of this Title relating to adoption.
§1103. Grounds for Termination of Parental Rights
(a) The procedure for termination of parental- rights for the purpose of adoption or, if a suitable adoption plan cannot be effected, for the purpose of providing for the care of the child by some other plan which may or may not contemplate the continued possibility of eventual adoption, may be initiated whenever it appears to be in the child's best interest and that one or more of the following grounds exist:
The parent or parents of a child, or the person or persons or organization holding parental- rights over such child, desires to relinquish such parental rights for the purpose of adoption;
The child has been abandoned; or
The parent or parents of the child or any person or persons
holding parental rights over such child are found by the Court to be mentally incompetent and, from evidence of two qualified psychiatrists selected by the court, found to be unable to discharge parental
responsibilities in the foreseeable future. The court shall appoint a
licensed attorney as guardian id litim to represent the alleged incompetent in the proceeding; or
The parent or parents of a child are convicted of a felony in which this child is a victim or which involves harm to the child; or
The parent or parents of the child, or any person or persons
holding parental rights over such child, are not able, or have failed, to plan adequately for the child's physical needs or his mental and emotional health and development and;
In the case of a child in the care of the Department or licensed agency:
I. The child has been in the care of the Department or licensed
agency for a period of one year, or for a period of six months in the case of a child who comes into care as an infant, or there is a history of previous placement or placements of this child; or a history of neglect, abuse or lack of care of this child or other children by this parent; or the parent has been convicted of a felony involving the child; or the parent is incapable of discharging parental responsibilities because of extended or repeated incarceration, except that the Court shall consider post-conviction conduct of the parent or parents.
ii. The conditions which led to the child's placement, or similar
conditions of a harmful nature, continue to exist and there appears to be little likelihood that these conditions will be remedied at an early date which would enable the parent to discharge parental responsibilities so that the child can be returned to the parent in the near future.
In the case of a child in the home of a stepparent or blood
I. The child has resided in the home of the stepparent or blood relative for a period of at least one year, or for a period of six months in the case of an infant; and
ii. The Court finds the non-custodial parent or parents incapable of discharging parental responsibilities, and that there appears to be little likelihood such parent or parents will be able to discharge such parental responsibilities in the near future.
(b) Unless adoption is contemplated, the termination of one parent's rights by the other parent shall not be granted if the effect will be to
leave only one parent holding parental rights, unless the court shall find the continuation of the rights to be terminated will be harmful to the child.
(c) Nothing in this Act shall be construed to authorize any court to terminate the rights of a parent to a child, solely because the parent, in good faith, provides for his child, in lieu of medical treatment, treatment by spiritual means alone through prayer in accordance with the tenets and practice of a recognized church or religious denomination. However, nothing contained herein shall prevent a court from immediately assuming custody of a child and ordering whatever action may be necessary, including medical treatment, to protect his health and welfare.
§1104. Persons Eligible to Petition for Termination of Parental Rights
A petition for the termination of parental rights may be filed by any of the following:
the mother of a child;
the father or presumed father of a child;
both parents of a child;
a blood relative of a child;
the Department or a licensed agency.
§1105. Contents of petition
(a) The petition for the termination of parental rights shall state:
(1) Name and place of residence of the petitioner or petitioners;
(2) Name, sex, date of birth and place of birth of the child;
(3) Relationship of the petitioner or petitioners to the child or the fact that no such relationship exists;
(4) The name and address of the mother and the address of the father or presumed father;
(5) Where the name and address of the father is not provided, a statement, with an affidavit from the mother attached to the petition, that:
The mother knows the name of the biological father but is
unwilling to disclose his name; or
The mother does not know the name of the biological father; or
The mother knows the name of the biological father and has provided it, but that she has never known his address; and
The mother's husband, if she was married at the time of the child's conception or birth, is not the child's biological father.
If the mother is unavailable or refuses to provide the requisite affidavit, the petition shall set forth such information as required by this paragraph as is known to the petitioner.
(6) The name and last known address of the person or persons or organization holding parental rights and the name and address of the person or persons or organization having the care, control or custody of the child;
(7) The grounds for termination of parental rights;
(8) The name and address of the person or persons or of the Department or licensed agency to which parental rights are requested to be transferred.
(9) In addition to other pertinent information, the petition, if
either the name or address of the parent or parents is not included, shall
furnish detailed information concerning the efforts made to locate the parent or parents to enable the Court to determine what further steps, if any, should be taken.
A statement that petitioner has explored the possibility of
placement of the child with blood relatives, if both parents rights are being terminated, and the results of such efforts; and
A statement outlining what other placement efforts have been taken, if any.
Any consents required in §1106 of this title shall accompany the petition as exhibits.
In any case in which a petition for the termination of parental rights has been filed pursuant to §1103(a)(1) and the Department or a licensed agency is a party to the proceeding, there shall be attached to the petition a social report. In any case in which a petition for the
termination of parental rights has been filed on any other ground set forth in §1103(a) and the Department or a licensed agency is a party to the proceeding, a social report shall be filed no later than the date of the hearing on the petition.
§1106. Consent Requirements: Waiver of Notice
(1) In the case of proceedings based on §1103(a)(1) of this section
consent shall be required from:
a. The mother of the child;
b. The father and any presumed father of the child; provided that:
I. The consent of an alleged biological father or presumed father need not contain an admission of paternity. In the event the alleged biological father or presumed father denies paternity, an affidavit to that effect signed by him shall be attached to the petition in lieu of a consent.
In the event that the mother was married at the time of the child's conception or birth but her husband at those times is not the biological father of the child, a notarized statement of the husband that he is not the biological father of the child shall be prima facie proof thereof in the absence of evidence to the contrary. If such a notarized statement of the legal husband cannot be obtained, a notice of hearing shall be sent to htm as provided in §1107 of this title;
In the event of a petition containing statements described in §1105(a)(5) a, b, or c of this title, after a hearing in which it is established on the record that the mother and father of the child are not living together as husband and wife openly and that they have not done so nor married since the birth of the child, the court may, following consideration of the social report, dispense with the requirement of the father's consent in compliance with §1115 of this title.
c. One parent, if the other is deceased.
d. Any other person or persons or organization holding parental rights.
e. One parent alone if the termination of the other parent's rights is being sought based on grounds as in §1103 (a) (2), (3), (4), or (5) of this title.
If the person in whom the right to consent exists is under the age of eighteen, this fact shall not be a bar to the giving of consent nor render the consent invalid when given.
Every petition shall be accompanied by a formal written consent executed by the person or persons for whom or the organization to which parental rights are requested to be transferred.
When a petition for the termination of parental rights if filed by a licensed agency and the child is an infant and the person or persons or organization holding parental rights wish to waive their right to any and all notice of hearing or right to appear at such hearing, the petition shall be accompanied by a notarized statement to this effect executed by the person or persons or organization holding parental rights.
Consent by the father or presumed father may be executed either before or after the actual birth of the child involved.
§1107. fleartna_Procedure: Notice_of_Bepring: Report
When a petition for the termination of parental rights is filed in which the Department or licensed agency is a party to the proceedings, the court shall set a date for hearing thereon, and shall cause notice of the time, place and purpose of the hearing to be served upon the parent or parents, person or persons or organization holding parental rights at the respondent's last known address or to the address recited in the petition.
No such notice of hearing shall be necessary if:
I. a waiver executed by the parent or parents, person or persons or organization holding parental rights has been filed with the petition, in accordance with §1106(4) of this title. The court may require notice to be served upon any other person or organization.
ii. prior to the filing of the petition for termination of
parental rights, the parent or parents, person or persons or organization holding parental rights has failed to respond to the petitioning agency within 20 days after receiving notice of the intention to file the petition. Such notice shall contain information regarding the child's name and date of birth, grounds for the petition, the right to file with the Court or the petitioning agency opposition to the termination of parental rights or to deny paternity, and shall be mailed by registered or certified mail. Proof of receipt shall be attached to the petition as an exhibit.
If the court shall find that personal service within the state
cannot be accomplished upon the parent or parents, person or persons or organization holding parental rights, the court shall then cause notice of the time, place and purpose of the hearing to be published once a week, for three successive weeks, in such newspaper of the county, one or more, as the court may judge best for giving the parent or parents, or person or persons or organization holding parental rights notice, the formal wording of said notice to be approved by the court. Such publication shall
constitute conclusive evidence of service and a hearing will then proceed at the time and date set, with or without the appearance of the parent or parents, person or persons or organization so notified. Publication shall also be made in the locality in which the parent or parents, person or persons or organization holding parental rights is believed to be located if different from the county where the publication just described has been caused.
If any publication is ordered pursuant to subsection (c), the
Court shall also order that the Clerk of the Court, at least three weeks prior to the hearing, send by regular and registered or certified mail to the parent or parents or person or persons or organization holding parental rights, at the address or addresses given in the petition, a copy of the same notice, or a similar notice of the time, place and purpose of the hearing.
Personal service at any time prior to the hearing shall be
sufficient to give jurisdiction.
When a petition for termination of parental rights is filed and the Department or a licensed agency is not a party to the proceeding, the Court shall, before any hearing, order a social study and report on the petition, by the Department or a licensed agency, to be filed within four months, subject to such additional time as' the Court shall determine is reasonably required. The Court shall set a date for hearing to take place after the report is to be filed and notice shall be accomplished as outlined above.
(g) All hearings shall be held before the Court privately, but for reasons appearing sufficient to the Court the hearing in any particular case may be public.
§1108. Order of Termination and Transfer of Parente] Riebts
Should the Court find the termination of existing parental rights and their transfer to be in the best interest of the child, it shall make an order terminating such rights in the parent or parents, person or persons or organization in which they have existed and transferring them to some other person or persons or the Department or a licensed agency as may, in the opinion of the Court, be best qualified to receive them.
In the case of proceedings based on §1103(a)(1) of this title in which all individuals entitled to consent have waived notice of hearing and the right to appear at such hearing in accordance with §1106(4) of this title, the Court shall issue its decision and order within 30 days after the filing of the petition and social report. In all other cases, the
Court shall issue its decision and order within 30 days following the conclusion of the proceedings.
If a child is abandoned by 1 parent only, the rights of such parent may be terminated without affecting the rights of the other.
The Court shall consider post-conviction conduct of parent or parents.
§1109 Petition for_Ransfer_of_Pareptai_Klahts_aEleceased Parents
When the mother and the father or presumed father of a child are deceased, the Department or a licensed agency may file a petition to transfer the parental rights of the deceased parents to the Department or licensed agency for the purpose of adoption planning when such appears to be in the best interest of the child. The petition shall contain:
Name and place of residence of the petitioner or petitioners;
Name, sex, date and place of birth of the child;
The names, places of residence and dates of death of the mother and father or presumed father of the child; and
Certified copies of the death certificates of the parents of the child.
The petitioner, if the petition is not granted, or any person or organization whose parental rights have been terminated by the order, may, at any time within 30 days after the making and entry of such decree, take an appeal therefrom to the Supreme Court.
§1111. Court Colts
All court costs including costs of giving notice and advertising shall be paid by the petitioners. Court costs do not include attorney fees of the respondent(s).
§1112. Confidential Nature of Court Records
All Court records and dockets pertaining to any termination shall be confidential and shall be kept by the Clerk of the Court in a sealed container which shall be opened only by the order of a Judge of the Family Court.
Nothing in this section shall be construed in such a way as to restrict the Department or a licensed agency from releasing non-identifying information in its records to any of the parties to the termination.
Identifying information, such as names and addresses, shall not be released by the Department or a licensed agency except:
by order of the Court;
according to §929 of this title.
In cases where the adopted individual's health or the health of any blood relative of the adopted individual is concerned and the agency has refused to release the health information to the adopted individual, the Court, through petition by the adopted individual, may permit the individual to inspect only that part of the agency or Court record containing medical information for health reasons. The Court shall order open to inspection by the adopted individual the part of the record containing the needed medical information if the Court finds that any medical information in the Court or agency record of the adopted individual is needed for the health of the adopted individual or any blood relative of the adopted individual. This section shall apply to information as to the identification and location of any biological sibling of the adopted individual if the adopted individual's health or the health of any blood relative of the adopted individual depends on the sibling's participation in any medical treatment.
Anyone wishing to inspect the papers filed in connection with any termination shall petition the Family Court or the court of original jurisdiction setting forth the reasons for the inspection. The Court may refer the petition to the Department or a licensed agency for investigation and report. If, in the opinion of the Court, the information is necessary, and the interests of the adopted individual, the biological parents or the adoptive parents will not be prejudiced by its disclosure, the Court shall issue an order permitting the release of the information and setting forth the terms under which it shall be released.
§1113 Effect of Termination of Parental Rights
Upon the issuance of an order terminating the existing parental rights and transferring such parental rights to another person or organization, the effect of such order shall be that all of the rights, duties, privileges and obligations recognized by law between the person or persons whose parental rights are terminated and the child shall forever thereafter cease to exist. The person or organization to whom said
parental rights are transferred shall have custody and guardianship of the child but such custody and guardianship shall terminate automatically upon the entry of another order transferring parental rights or on an order of adoption.
Upon the issuance of an order terminating the existing parental rights and transferring such parental rights to another person or organization, the child shall lose all rights of inheritance from the parents whose parental rights were terminated and from their collateral or lineal relatives and the parents whose parental rights were terminated and their collateral or lineal relatives shall lose all rights of inheritance from the child.
Nothing contained in this section shall limit in any way the right of any person to provide for the disposition of his or her property by will.
§1114. Placement for Adoption
After the issuance of an order terminating the existing parental rights and transferring them to the Department or a licensed agency, the agency shall attempt to promptly place the child for adoption. Every six months thereafter until an adoption decree is entered the agency shall advise the Court in writing of the status of the child stating the reasons for the delay in placement or adoption. The Court may, after notice, hold a hearing to determine if any further action is required in the best interest of the child.
This Chapter is designed to achieve without undue delay the paramount objective of the best interest of the child, and all questions of interpretation shall be resolved with that objective in mind."
Section 2. This Act shall become effective 60 days after its enactment. Actions commenced prior to the effective date of this act shall be governed by Chapter 11 of Title 13 operative prior to such effective date, and those provisions shall remain in effect as to those actions as if this act was not in effect.
Approved June 25, 1992.